Karnataka High Court
State Of Karnataka vs Azgar on 22 November, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A No. 1786 of 2017
C/W CRL.A No. 491 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL NO. 1786 OF 2017 (A)
C/W
CRIMINAL APPEAL NO. 491 OF 2017 (A)
IN CRL.A.NO.1786/2017
BETWEEN:
KUM. KARISHMA
D/O ANSAR PASHA,
AGED ABOUT 21 YEARS,
R/A BASAPPANADODDI VILLAGE,
KOLLEGALA TALUK,
CHAMARAJNAGAR DIST-571 440
Digitally signed by D
HEMA
Location: HIGH COURT
...APPELLANT
OF KARNATAKA
(BY SMT. ARCHANA K M., AMICUS CURIAE)
AND:
1. AZGAR
S/O AKBAR,
AGED ABOUT 26 YEARS
R/A BASAPPANADODDI VILLAGE,
KOLLEGALA TALUK,
CHAMARAJNAGAR DIST-571 440
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CRL.A No. 1786 of 2017
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2. THE STATE OF KARNATAKA
THROUGH RAMAPURA P.S.
CHAMARAJANAGAR DIST-571 313
(REPRESENTED BY SPP
HIGH COURT OF KARNATAKA AT
BENGALURU-01)
...RESPONDENTS
(BY SRI. VINAYAKA V S., AMICUS CURIAE FOR R1;
SMT. K.P. YASHODHA, HCGP FOR R2)
THIS CRIMINAL APPEAL IS FILED U/S.372 OF CR.P.C PRAYING
THAT TO SET ASIDE THE ORDER OF ACQUITTAL DATED 18.11.2016
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHAMARAJANAGARA IN SPL.C.NO.12/2015 AND CONVICT THE
RESPONDENT NO.1 FOR THE OFEFNCE P/U/S 307 OF IPC.
IN CRL.A.NO.491/2017
BETWEEN:
STATE OF KARNATAKA
BY RAMAPURA POLICE STATION
CHAMARAJANAGAR
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU -560001.
...APPELLANT
(BY SMT. K.P. YASHODHA, HCGP)
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CRL.A No. 1786 of 2017
C/W CRL.A No. 491 of 2017
AND:
AZGAR
S/O AKBAR,
AGED ABOUT 26 YEARS,
BASAPPANADODDI VILLAGE,
KOLLEGALA TALUK -571 440
...RESPONDENT
(BY SRI. VINAYAKA V S., AMICUS CURIAE)
THIS CRIMINAL APPEAL IS FILED U/S.378(1) & (3) OF CR.P.C
PRAYING TO (A) GRANT LEAVE TO FILE AN APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL PASSED BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA IN
SPL.C.NO.12/2015 THEREBY ACQUITTING ACCUSED/RESPONDENT
OF THE OFFENCES P/U/S 354, 307 AND 326 OF IPC SECTION
11(IV) READ WITH SECTION 12 OF POCSO ACT (B) SET ASIDE THE
AFORESAID JUDGMENT AND ORDER OF ACQUITTAL AND (C)
CONVICT AND SENTENCE THE ACCUSED FOR THE OFFNECE P/U/S
354, 307 AND 326 OF IPC AND SECTION 11(IV) READ WITH
SECTION 12 OF POCSO ACT.
THESE APPEALS COMING ON FOR HEARING THROUGH
PHYSICAL HEARING/VIDEO CONFERENCE THIS DAY,
DR. H.B.PRABHAKARA SASTRY, J., DELIVERED THE
FOLLOWING:
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COMMON JUDGMENT
The appellant-complainant has filed Criminal Appeal
No.1786/2017 under Section 372 of Code of Criminal Procedure,
1973 (hereinafter for brevity referred to as `the Cr.P.C.') and the
State has filed Criminal Appeal No.491/2017 under Section 378
(1) and (3) of Cr.P.C., both challenging the judgment of
conviction dated 18.11.2016 and order of sentence dated
19.11.2016 passed by the learned Prl.District & Sessions Judge,
Chamarajanagara (hereinafter for brevity referred to as the
`Sessions Judge's Court') in S.C.No.12/2015 acquitting the
accused of the offences punishable under Sections 354, 326 and
307 of Indian Penal Code, 1860 (hereinafter for brevity referred
to as `IPC'), and Section 11(iv) read with Section 12 of
Protection of Children from Sexual Offences Act, 2012
(hereinafter for brevity referred to as 'POCSO Act').
2. The summary of the case of the prosecution is that
alleged victim/complainant - PW-1(CW-1) (henceforth referred to
as the 'victim') is a native and resident of Basappanadoddi
Village, Kollegala Taluk within the limits of complainant Police
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Station. However, for about few years she was at Bengaluru.
During that time the accused had sent her a message over cell-
phone stating that he is loving her. After return to her village -
Basappanadoddi, the accused stated that it was him, who sent
the message and thereafter both the accused and the victim
started talking to each other. Thereafter, the accused asked the
victim to convince her parents to withdraw a case said to have
been filed by them against one Sri. Zameer Beig and Sri. Zameel
Beig, who were said to be the employers of the accused,
however, the victim was hesitant to ask her parents to
compromise the matter. In that regard, accused threatened the
victim that, if, she does not accede to his request, he would not
only avoid marrying her, but, also kill her, however, the victim
had ignored the said warning of the accused.
That being the case, on the date 27.12.2013 at about
10.00 a.m. to 10.30 a.m., while the victim was coming out from
the lavatory of her house, the accused holding an Axe in his hand
had inflicted three blows upon the backside of her neck and
another blow on her chest, inflicting injuries upon her. Screaming
due to the pain, the victim fell down. Her mother, PW-2 who had
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rushed to the spot, after seeing the incident shifted her
daughter/victim with the help of others to the hospital and got
her medically treated. In the hospital, the victim gave a
complaint against the accused as per Ex.P.1, which came to be
registered in the complainant-Police Station in Crime
No.180/2013 against the accused for the offences punishable
under Sections 354 and 307 of IPC. After completing the
investigation, the police filed charge sheet against the accused
for the offences punishable under Sections 354 and 307 of IPC.
After committal of the matter in C.C.No.184/2014, from the
Court of Additional Civil Judge and JMFC at Kollegala, the matter
was made over to the Fast Track Court, Kollegala and was
registered under S.C.No.50/2014. During the pendency of the
said case before the Court, by the prosecution, through a memo,
it was brought to the notice of the Fast Track Court that the
alleged incident attracts even offence punishable under Section
11(iv) read with Section 12 of the POCSO Act and request was
made to make over the case to the Special Court. After hearing,
the learned Presiding Officer of the Fast Track Court, Kollegala,
by order dated 16.01.2015, ordered for transfer of the case to
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the jurisdictional Special Court, Chamarajanagara. Accordingly,
the matter came up before the Court of the Principal District and
Sessions Judge, Chamarajanagara, which is also Special Court
under POCSO Act (hereinafter for brevity referred to as Special
Judge's Court) and the case was renumbered as Special Case
No.12/2015.
After perusing the materials placed before it and hearing both
side, the Sessions Judge's Court framed charges against the
accused for the offence punishable under Sections 324, 354, 326
and 307 of `IPC' and Section 11(iv) read with Section 12 of POCSO
Act. Since the accused pleaded not guilty, the trial was held,
wherein, in order to prove the alleged guilt against the accused, the
prosecution got examined in all nineteen (19) witnesses as PW-1 to
PW-19 and got produced and marked 21 documents from Exs.P.1 to
P.21 and got produced Material Objects from MO-1 to MO-7. From
the accused side, neither any witness was examined nor any
documents were got marked as exhibits.
3. After hearing both side, the Special Judge's Court, by its
judgment dated 18.11.2016, though acquitted the
accused for the offences punishable under
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Sections 354, 326 and 307 of IPC, and Section 11(iv) read
with Section 12 of POCSO Act, however, it convicted the
accused for the offence punishable under Section 324 of IPC
and sentenced him accordingly. Aggrieved by the same, the
victim has preferred an appeal in Crl.A.No.1786/2017 and
State has preferred an appeal in Crl.A.No.491/2017.
4. The State is represented by the learned High Court
Government Pleader. In Crl.A.No.1786/2017, the accused was
respondent No.1, though served but remained unrepresented,
however, in Crl.A.No.491/2017, where the accused was the
sole respondent, he appeared through his counsel and was
being represented by his counsel. However, the said learned
counsel for the accused in Crl.A.No.491/2017 since has
remained absent for few dates of hearing, this Court by its
order dated 10.11.2023 appointed learned counsel
Sri. V.S. Vinayaka as Amicus Curiae for the
accused/respondent in both the appeals.
Simultaneously, noticing the continuous absence of the
learned counsel for the appellant in Crl.A.No.1786/2017 also,
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on the very same day, this Court appointed learned counsel
Smt. K.M. Archana, as Amicus Curiae for the victim/appellant
in Crl.A.No.1786/2017. Consequently, the learned counsel who
were earlier appearing for the appellant in Crl.A.No.1786/2017
and learned counsel for the accused in Crl.A.No.491/2017
stood relieved in these matters.
5. The Sessions Judge's Court records were called for
and the same are placed before this Court.
6. Heard the arguments from both side in both the
appeals. Perused the materials placed before this Court,
including the memorandum of appeal, impugned judgment and
the Sessions Judge's Court records.
7. For the sake of convenience, the parties would be
henceforth referred to as per their rankings before the learned
Sessions Judge's Court.
8. Learned HCGP for the appellant/State in
Crl.A.No.491/2017 in her argument submitted that the
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evidence led by the prosecution, more particularly, the
evidence of PW-1 and PW-2 shows that at the time of
commission of the offence the accused not only had the
knowledge, but also the intention to take away the life of the
victim, since, he had threatened in express terms to PW-1
that he is going to kill her, in case, if she does not accede to
his request of pursuing her parents from withdrawing a case
filed by them against his employers. It is with the said
intention, since he has inflicted multiple blows with the Axe -
M.O.1, the offence punishable under Section 307 of IPC has
been established.
She further contended that relying upon the judgment of
Hon'ble Apex Court in the case of SADAKAT KOTWAR AND
ANOTHER VS. STATE OF JHARKHAND reported in 2021 SCC
OnLine SC 1046, learned HCGP submitted that where the
weapon used is deadly weapon and the injury inflicted on vital
parts of the body, the offence squarely attracts Section 307 of
IPC.
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Learned HCGP further contended that since, the offence
has been committed in front of the lavatory facing a public
road, during broad daylight, against a minor girl, the accused
has committed the offence of outraging the modesty of the
victim. Further, the evidence of prosecution that the victim
was minor on the date of offence, has not been denied by the
accused in any way. Further, the evidence led by the
prosecution, more particularly of PW-1 and PW-2 go to show
that prior to the date of incident, on several occasions, the
accused was sending SMS messages to the victim stating that
he was loving her, was teasing her and following her while she
was pursuing her studies at Bengaluru. As such, the offence
under Section 11(iv) read with Section 12 of POCSO Act also
stands established. However, the trial Court without
appreciating the evidence placed before it, in its proper
perspective and without giving any reasons, has only noticed
the injuries inflicted upon the victim by the accused and by
itself concluding that the injuries are simple in nature, had
acquitted the accused of the offences punishable under
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Sections 307, 326 and 354 of IPC and under Section 11(iv)
read with Section 12 of POCSO Act, which is erroneous. As
such, impugned judgment warrants interference at the hands
of this Court and appeal deserves to be allowed.
9. Learned Amicus Curiae for the appellant in
Crl.A.No.1786/2017 in her argument, apart from adopting the
points canvassed by the learned HCGP, has submitted that the
evidence of PW-1 and PW-2, as a victim to the incident and as
an eye-witness to the incident, have come in an uniform
manner and has withstood the detailed cross-examination
from the accused side. Both of them have stated that it was
accused and accused alone who inflicted grievous injuries upon
the victim. The trial Court mistook the grievous injuries,
though stated by the PW-1 - Doctor, as simple in nature and
ignored the fact that the proven guilt not only attracts the
Section 326 of IPC but also Section 307 of IPC.
Learned Amicus Curiae further contended that in order
to attract Section 307 of IPC, it is not always necessary that
there must be grievous injuries on the part of the victim,
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suffice if, intention or knowledge of the assailant is proved. In
her support, she relied upon the judgment of Hon'ble Supreme
Court in the case of STATE OF MADHYA PRADESH VS.
HARJEET SINGH AND OTHERS reported in
MANU/SC/0238/2019 and also the judgment of Hon'ble
Apex Court in S.K. KHAJA VS. STATE OF MAHARASHTRA
reported in 2023 SCC OnLine SC 1093 (Crl.A.No.1183/2011
dated 23.08.2023). Learned Amicus Curiae further contended
that all the essentials of Section 307 of IPC has clearly been
made out by the prosecution through cogent evidences of PW-
1 and PW-2 corroborated by the medical evidence, however,
the Special Court without appreciating the evidence in their
proper perspective, in few sentences, observed that the
proven guilt attracts only Section 324 of the IPC and not the
other offences.
Learned Amicus Curiae for the victim further contended
that the age of the victim as on the date of the incident was
only 17 years and the same has not been denied or disputed
from the accused side. The evidence of PW-1 shows that the
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accused was teasing her and sending her obscene messages
knowing fully well that she was minor in her age, as such,
Section 11(iv) read with Section 12 of POCSO Act has stood
proven.
The Forensic Science Laboratory (for short 'FSL') report
along with the Serology report have clearly established the
presence of blood stains on the dress material worn by the
victim at the time of incident and also on the weapon i.e.,
Axe - M.O.1. It is established that the group of blood found on
the weapon and the dress material worn by the victim were
matching with the blood group of the victim, which is B+ve, as
such, both through oral evidence, through documentary
evidence and scientifically also, the prosecution has proved
that the accused has attempted to kill PW-1, by inflicting
multiple injuries upon her through the weapon - M.O.1. Said
weapon was also identified by none else than the victim
herself and the photograph of the scene of offence shows the
said weapon on it. However, the trial Court without considering
all these important and clinching evidences has straight away
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jumped to the conclusion that though the act of the accused in
assaulting victim has been established, but, the same cannot
be considered as an act of attempt to cause death of victim,
resulting in acquitting the accused from the major offence of
Section 307 of IPC and Section 11(iv) read with Section 12 of
POCSO Act. As such, interference of this Court is warranted
by allowing the appeal filed by the complainant.
10. Per contra, learned Amicus Curiae for the accused
in both the appeals, in his argument, at the outset, fairly
conceded that according to his information the accused has
not preferred any appeal against the impugned judgment. He
submitted that the nature of the injuries said to have been
sustained by the victim in the alleged incident is simple in
nature, as stated by the PW-11 - Doctor, where the victim was
said to have been taken treatment as an inpatient. Further,
the very same Doctor has also stated that the injuries with the
M.O.1 are inflicted with force, then, there was all the
possibility of fracture of Cervical Bone, which, in the instant
case, has not occurred. As such also, it can not be held that
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the accused had any intention to kill PW-1. Thus, the Special
Court has rightly acquitted the accused of the offence
punishable under Section 307 of IPC. He further contended
that the prosecution has utterly failed to prove that the alleged
act of the accused, in any way, can be called as outraging the
modesty of a woman, since, the act of assault and act of
outraging the modesty are two different offences. With this, he
submitted that since the trial Court, has after proper analysis
of the evidence, had rightly acquitted the accused of the
offences punishable under Sections 307, 326 and 354 of IPC
and under Section 11(iv) read with Section 12 of POCSO Act
and the same does not warrant any interference at the hands
of this Court.
11. After hearing the learned counsels from both side,
the points that arise for our consideration in these appeals
are:
1) Whether the prosecution has proved
beyond reasonable doubt that on the date
27.12.2013 at about 10.30 a.m. while CW-
1 -victim being a minor girl had been to
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nature call to the lavatory in her house in
Basappanadoddi village, Kollegala Taluk,
within the limits of complainant Police
Station, the accused while the victim was
coming out from the lavatory assaulted her
and voluntarily caused grievous hurt by
dangerous weapon i.e., an Axe and inflicted
blows on her neck and chest and thereby
committed an offence punishable under
Section 326 of IPC?
2) Whether the prosecution has proved
beyond reasonable doubt that on the time,
date and place mentioned above, the
accused assaulted CW-1, the victim,
intending to outrage and knowing that his
act would be likely that he will thereby
outrage her modesty has committed an
offence punishable under Section 354 of
IPC?
3) Whether the prosecution has proved
beyond reasonable doubt that on the date,
time and place mentioned above, the
accused assaulted CW-1, the victim, with
an Axe on her neck and chest with an
intention to cause the death of CW-1, the
victim and knowing that under the
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circumstances, his act may cause her
death, in which case, he would be guilty of
murder, has assaulted CW-1 and thereby
has committed an offence punishable under
Section 307 of IPC?
4) Whether the prosecution has proved
beyond reasonable doubt that on the date,
time and place mentioned above, by his act
of following CW-1, the victim and teasing
her and also sending her lustful messages
has committed an offence punishable under
Section 11(iv) read with Section 12 of
POCSO Act?
5) Whether, the impugned judgment of
acquittal warrants any interference at the
hands of this Court?
12. Before proceeding further in analysing the evidence
led in the matter, it is to be borne in mind that it is an appeal
against the judgment of acquittal of accused for the offence
punishable under Sections 307, 326 and 354 of IPC and under
Section 11(iv) read with Section 12 of POCSO Act. Therefore,
the accused has primarily the double benefit. Firstly, the
presumption under law is that, unless his guilt is proved, the
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accused has to be treated as innocent in the alleged crime.
Secondly, the accused is already enjoying the benefit of
judgment of acquittal passed under the impugned judgment.
As such, bearing the same in mind, the evidence placed by the
prosecution in the matter is required to be analysed.
(a) Our Hon'ble Apex Court, in its judgment in the case of
Chandrappa and others -vs- State of Karnataka, reported
in (2007) 4 Supreme Court Cases 415, while laying down
the general principles regarding powers of the Appellate Court
while dealing in an appeal against an order of acquittal, was
pleased to observe at paragraph 42(4) and paragraph 42(5) as
below:
" 42(4) An appellate court, however, must bear in
mind that in case of acquittal, there is double presumption
in favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall
be presumed to be innocent unless he is proved guilty by
a competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the
trial court.
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42(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by the
trial court."
(b) In the case of Sudershan Kumar -vs- State of
Himachal Pradesh reported in (2014) 15 Supreme Court
Cases 666, while referring to Chandrappa's case (supra),
the Hon'ble Apex Court at Paragraph 31 of its Judgment was
pleased to hold that, it is the cardinal principle in criminal
jurisprudence that presumption of innocence of the accused is
reinforced by an order of acquittal. The Appellate Court, in
such a case, would interfere only for very substantial and
compelling reasons.
(c) In the case of Jafarudheen and others -vs- State
of Kerala, reported in (2022) 8 Supreme Court Cases 440,
at Paragraph 25 of its judgment, the Hon'ble Apex Court was
pleased to observe as below:
" 25. While dealing with an appeal against acquittal
by invoking Section 378 Cr.P.C, the appellate Court has
to consider whether the trial court's view can be termed
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as a possible one, particularly when evidence on record
has been analysed. The reason is that an order of
acquittal adds up to the presumption of innocence in
favour of the accused. Thus, the appellate Court has to
be relatively slow in reversing the order of the trial court
rendering acquittal. Therefore, the presumption in favour
of the accused does not get weakened but only
strengthened. Such a double presumption that enures in
favour of the accused has to be disturbed only by
thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case
was reaffirmed by the Hon'ble Apex Court, in the case of Ravi
Sharma -vs- State (Government of NCT of Delhi) and
another reported in (2022) 8 Supreme Court Cases 536
and also in the case of Roopwanti Vs. State of Haryana
and others reported in AIR 2023 SUPREME COURT 1199.
It is keeping in mind the above principles laid down by
the Hon'ble Apex Court, we proceed to analyse the evidence
placed in this matter.
13. In support of its case, the prosecution has
examined nineteen (19) witnesses from PW-1 to PW-19 and
got marked twenty one (21) documents from Exs.P.1 to P.21
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apart from MOs-1 to 7. After closure of prosecution side,
statement of the accused contemplated under Section
313 of Cr.P.C. was recorded. The accused totally
denied the case of the prosecution and did not lead any
defence evidence.
14. Among the nineteen witnesses examined by the
prosecution, PW-1 (CW-1) victim was shown as complainant and an
injured witness. PW-2 (CW-2) Umera Bhanu, mother of the victim,
PW-3 - Zakeer, PW-4 - Mohammed Rafique, PW-5 - Fayaz,
PW-8 - Zameer Beg, PW-9 - Zameel Beg were shown by it as eye
witnesses to the alleged incident. PW-6 - Ansar @ Ansar Pasha is
father of the victim and he came to the spot after the incident.
PW-7 Riyaz Pasha and PW-10 - Firoz Khan are pancha witnesses to
spot mahazar marked at Ex.P.5. PW-11 - Dr.Samson is Medical
Officer of Janani Hospital, Kollegal, who gave treatment to PW-1. So
also PW-18 - Dr.Khaleed issued wound certificate and
PW-19-Smt.Blaise is Administrative officer of Holy Cross Hospital,
Kamagere who produced MLC register extract. PW-12 - Smt.Nirmala
is Headmistress who gave date of birth certificate based on school
records and marked at Ex.P.14 and admission register extract
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marked at Ex.P.15. PW-13 Nazeem Pasha, PW-14 -Zafar Khan
are pancha witnesses to seizure mahazar marked at Ex.P.8
under which, clothes of PW-1 were seized. PW-15 -
Shekharaju is ASI who received the complaint and registered
the case and sent the same to the Court, PW-16- Smt.
Chayakumari is Scientific Officer who examined the clothes of
PW-1. PW-17 - Basavaraju is PSI, who investigated the case
and submitted charge sheet against the accused.
15. According to the prosecution, both the accused and
the victim were the residents of Basappanadoddi Village and
they knew each other since prior to the incident. The said
aspect is not disputed from the accused side. On the other
hand, the said aspect is stated by PW-1 and PW-2 in their
evidence, which has not been denied by the accused.
Moreover, the accused himself by taking a contention in the
form of his defence by making suggestions to PW-1, PW-2 and
PW-6 to that effect has shown that the victim was a person
known to him and that he was loving the victim, however, the
parents of the victim were not giving her in marriage to him.
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Though PW-1, PW-2 and PW-6 have denied the said
suggestion that due to avoiding of the marriage of the victim
with the accused, a false case has been filed by them through
PW-1, however, the evidence, the accused and victim were
known to each other has remained un-denied. Furthermore,
PW-1 has stated that after the initial incident of the accused
sending her a message to her cell phone as 'I love you',
thereafter, they started talking with each other and the same
resulted in one loving the other has not specifically denied
from the accused side. PW-2, the mother of the victim also
had spoken about the said love between the accused and the
victim. However, the same was what she claims to have heard
from her daughter, i.e., the victim.
About the incident said to have taken place on 27.12.2013,
among the nineteen (19) witnesses examined by the prosecution, it is
PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-11, PW-18 and PW-19 are
shown to have stated about the same. Among the above witnesses,
even though PW-3/CW-3/Zakeer, PW-4/CW-4/Mohammed Rafique,
PW-5/CW-5/Fayaz were shown by the prosecution as
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the persons rushing to the spot of the incident immediately
after hearing the screaming of PW-1 and seeing the accused in
the place and also the weapon. However, all these three
witnesses have pleaded their total ignorance about the
incident. As such, the prosecution could not get any support
from these three witnesses even after treating them as hostile
and subjecting them to cross-examination, the prosecution
could not get any support from them.
According to the prosecution, the victim was a minor as on
the date of the alleged offence. PW-1 in her examination-in-chief
itself has stated that her date of birth is 10.08.1996. The same has
not been denied in her cross-examination.
16. PW-1/CW-1/Karishma, the victim in her evidence after
stating that while she was studying in High School at Bengaluru,
she received a message as 'I love you' and subsequently, after her
return to her village, she came to know that it was the accused who
had sent the message, 'I love you'. Admitting the same, the
accused started loving her and both of them decided to marry.
About the incident
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proceeded to state that, on the date, 27.12.2013 in the
morning at about 10.00 a.m. to 10.30 a.m., while she was
coming out of the lavatory of the house, the accused assaulted
her on her neck three times with an axe and assaulted on her
chest one time, due to which assault, she fell down. Her
mother (PW-2) and CW-3 to CW-5 rushed to the spot. Having
seen those persons rushed to the spot, the accused by
throwing the axe, which he was holding, ran away from the
place. Thereafter, she was shifted in an Auto-rickshaw to Holy
Cross Hospital, Kamagere and after getting the first-aid
treatment there, at the advice of the doctor, she was shifted in
an Ambulance to Janani Hospital, Kollegal. The witness in
specific term has stated that with an intention to kill her, the
accused had assaulted her in such a manner. She also stated
that she was an inpatient in the said hospital at Kollegal for a
day, at which time, the police visiting her has recorded her
statement, which she has identified at Ex.P1. She also clarified
that due to her immobility of the limbs, she could not put her
signature to the said complaint, however, has put her thumb
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mark on it. Stating that she can also identify the weapon used
by the accused in assaulting her, the witness has identified an
axe, which was marked at MO-1. She also stated that due to
the assault made by the accused, the dress worn by her at the
time of incident got blood-stained. Those clothes were
collected by the doctor. Stating so, the witness has identified a
veil, pyjam, chudidhar top, an inner-wear like banian and bra,
which were marked from MOs-2 and 6 in the Court. Further,
stating that the incident took place near the door of the
lavatory, the witness has identified a photograph at Ex.P2 as
the one showing the place of the offence. Seeing an axe in the
said photograph fallen on the ground, she has stated that it
was the axe, which was marked at MO-1.
17. PW-1 was subjected to a detailed cross-examination
from the accused side wherein she adhered to her original
version. In her cross-examination, she gave more details
about the incident and the love affair between her and the
accused. She stated that though the accused has agreed to
marry her, however, her family members were not agreeable
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for the same. She clarified in her cross-examination that
though there were adjacent houses as neighbours, however, at
the incident, they did not come to the spot but her mother
came. She specifically stated that with an intention to kill her,
the accused has assaulted her.
18. PW-2/CW-2/Umera Bhanu, the mother of the victim
in her examination-in-chief has also stated that as on the date
of the incident her daughter was aged 16 to 17 years. The
said statement of PW-2 has also not been denied from the
accused side.
More importantly, PW-12, Smt.A.Nirmala, the Head
Mistress of Government Higher Primary School,
Basappanadoddi Village in her evidence has stated that at the
request of the Investigating Officer in this matter, she has
verified the school records and based upon the details
recorded in the school records, she has issued a date of birth
certificate of the victim, who was an alumni of their school,
certifying that date of birth of the victim as per the school
records was 10.03.1996. In that regard, she has issued a
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certificate as per Ex.P14. She further stated that the admission
register brought by her to the Court in its original also
mentions the recording of the date of birth of the victim as
10.03.1996. Stating so, she has produced a copy of the
admission register extract, which copy, the Special Court after
comparing the same with the original register proceeded to
mark it as Ex.P15. The witness has identified her signatures in
both the documents. A perusal of Ex.P14, which in fact is a
Transfer Certificate and Ex.P15, which is a copy of relevant
portion of admission register maintained by the school go to
show that the date of birth of the victim recorded therein is
10.08.1996 but not 10.03.1996. However, since the
documents being the photo copies and the ink appearing to be
not bright and legible, the date was confusing to be
10.03.1996. As such, though PW-12 in her oral evidence has
stated that as per the school records, the date of birth of the
victim was 10.03.1996, however, the very same school
records produced by the same witness shows the date of birth
of the victim as 10.08.1996.
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Added to the same, the evidence of PW-12 that date of
birth of victim has been recorded in the school records and
the same are reflected in Exs.P14 and P15 has not been
denied in the cross-examination of the said witness.
Incidentally, the cross-examination of the said witness also
appears to be jumbled with some portion of the cross-
examination of PW-11, probably due to keeping the evidence
of PW-11 as a format in the computer system without deleting
the copied portion of the evidence in the second page of the
evidence of PW-11, as such, the continuation of the cross-
examination of PW-12 in page No.2, by a bare reading go to
show that it is not of PW-12 but of some other witness. The
availability of the deposition of PW-11 go to show that the
contents of page No.2 of PW-11 has been copied in page No.2
of deposition of PW-12 also. However, neither the witness
(PW-12) nor the Presiding Officer have noticed it, but they
have subscribed their signatures to the said deposition. Still
the fact remains that the say of PW-12 that date of birth of the
victim girl who was their ex-student is recorded in the school
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records extracts of which are at Ex.P14 and Ex.P15 has not
been denied in her cross-examination.
As observed above, both Exs.P14 and P15 shows the
date of birth of the victim as 10.08.1996. Further, PW-1
herself in her examination-in-chief had stated her date of birth
as 10.08.1996, which has not been denied in her cross-
examination. Thus, it stands proved that the date of birth of
the victim is 10.08.1996. As such, as on the date of the
alleged offence, which is on 27.12.2013, the victim was aged
seventeen (17) years four (4) months and seventeen (17)
days, as such she was a child under the POCSO Act also.
PW-2/CW-2/Umera Bhanu, the mother of PW-1, the
victim has stated that as on the date of incident, which was on
27.12.2013, her daughter PW-1 had gone to lavatory at about
10 O'clock in the morning. While she was returning from the
shop after purchasing the goods, she saw the accused holding
an axe in his hands moving towards the direction of her house
from his house. Being surprised as to why the accused is going
towards her house that too carrying an axe with him, she was
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looking at that, by which time, her daughter came out from
the lavatory, while she was bolting the door of the lavatory,
the accused went to her and assaulted on her neck with the
axe, which he was holding. While she was seeing the accused
inflicted one more blow upon her, looking at that, she
screamed. CW-3 to CW-5 also came running to the spot.
Having seen PW-2 and CW-3 to CW-5 rushing to the spot, the
accused threw the axe he was holding, in the spot and ran
away from there. Thereafter, these people attended to the
victim and getting an Auto-rickshaw shifted the injured from
Basappanadoddi Village to the Holy Cross Hospital at
Kamagere. PW-2 further stated that PW-4/CW-4/ Rafique
telephoned to her husband (PW-6/CW-6/Ansar) about the
incident. The doctor at Kamagere Hospital after giving first-aid
treatment advised to take the injured to some other hospital.
Accordingly, the injured/PW-1 was shifted to Janani Hospital at
Kollegala, where she was an inpatient for a day. The doctor
had suggested to take the injured to the other hospital,
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accordingly, the injured was taken to NIMHANS at Bengaluru
and was admitted there.
19. Coming to the history of the alleged incident, PW-2
has stated that she enquired with PW-1, her daughter in that
regard, for which, PW-1 stated that while she was in her
grandmother's house at Bengaluru, one day, a message came
to her mobile phone as 'I love you'. She ignored such
message, which did not have the sender's name. After her
return to her village, Basappanadoddi, the accused telephoned
to her and stated that it was him who had sent her the said
message and also stated that he is loving her. The witness
also stated that PW-1 consented to the said love, as stated to
her. This incident has happened about six (6) months prior to
the incident. It is thereafter, the accused was calling her
daughter over the phone now and then.
20. PW-6/CW-6/Ansar, the father of the victim has
stated in his evidence that as on the date of the incident, he
was away from his house on his work. However, he was
informed by Rafique (PW-4/CW-4) over the telephone that
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while his (this witness) daughter-PW-1 was coming out from
the lavatory near her house, the accused assaulted her with an
axe on her neck. PW-2 to PW-4 rushed to the spot and having
seen them rushing to the spot, the accused threw the axe at
the spot and ran away from the spot. It is thereafter, PW-2 to
PW-4 administered water to PW-1 and shifted her to Holy
Cross Hospital at Kamagere in an Auto-rickshaw. The witness
stated that PW-4 who had telephoned him has also stated to
him since the clothes worn by the injured are blood-stained
due to the incident, the other set of clothes were required to
be brought. Accordingly, he taking another set of clothes went
to Holy Cross Hospital at Kamagere. From there, he went to
Janani Hospital and gave clothes to PW-1 who changed her
dress.
PW-6 has further stated that in his enquiry with PW-1
about the incident, she stated that the accused had sent a
message earlier as 'I love you'. That message was repeated by
the accused again. Later on, she came to know that it was the
accused who was sending her such messages. After her return
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to the village from Bengaluru, the accused confessing that it
was him who had sent such message has also proposed to
marry her. The witness has further stated that though the
accused was ready to marry her, initially, PW-1 was not
agreeable to the same. Later, she also agreed to marry him.
As such, they were talking to each other over the phone.
The witness has further stated that after collecting blood-
stained clothes worn by his daughter/the victim at the time of
the incident had produced the same before the investigating
officer, who by drawing a seizure panchanama as per Ex.P8 has
seized the same. Stating that he would identify the weapon
used in the commission of the crime and the clothes worn by
his daughter at the time of the incident, the witness has
identified the axe at MO-1 and clothes at MO-2 to MO-5.
In his cross-examination, from the accused side, he
specifically stated that he was not an eye-witness to the
incident. As such, the entire evidence of PW-6 about the
alleged incident is purely an hear-say based upon what he
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claims to have heard from one Rafique (PW-4) and his
daughter.
21. The evidence of PW-1 and PW-2 about the incident
is that the accused was a person known to them and was
loving PW-1 and was willing to marry her. Both of them were
talking to each other over the phone.
The evidence of PW-1 that the accused assaulted her
with an axe on 27.12.2013 while she was coming out from the
lavatory near her house, though has been denied in the cross-
examination of the witness by making denial suggestion,
however, except making denial suggestion, nothing could be
elicited in the cross-examination of PW-1 to suspect her
evidence regarding the alleged incident. In the above
circumstances, there is no reason to disbelieve or suspect the
evidence of PW-1, which evidence inspires confidence in the
Court to believe. The Hon'ble Apex Court in the case of
LAKSHMAN SINGH VS. STATE OF BIHAR (NOW JHARKHAND)
and connected matters reported in (2021) 9 Supreme Court
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Cases 191, in sub-paragraphs 9.1 and 9.2 of its judgment,
referring to its previous judgment in the case of Abdul Syeed
Vs. State of M.P., [(2010) 10 SCC 259], was pleased to
observe that, the evidence of the injured witnesses is entitled
to a great weight and very cogent and convincing grounds
are required to discard their evidence. Thus, the deposition of
the injured witness should be relied upon unless there are
strong grounds for rejection of his evidence on the basis of
major contradictions and discrepancies therein. It was further
observed by their Lordships that, "being injured witnesses,
their presence at the time and place of occurrence cannot be
doubted".
22. In the instant case, in addition to the evidence of
PW-1, the evidence of PW-2 as an eye-witness has also
corroborated with the case of the prosecution. She has made it
clear that she was an eye-witness to the alleged incident. She
too has described about she having seen the accused
proceeding towards her house carrying an axe with him and
being surprised she watching as to what accused was doing,
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however, within no time, the accused assaulting her daughter
with the very same axe inflicting injuries upon her. Even in her
cross-examination also except making a suggestion of denial,
nothing could be elicited from the accused side to shaken the
evidence given by her in her examination-in-chief. Thus, the
evidence of PW-1 and PW-2 comes with a cogent manner
corroborating each other and giving a uniform and full account
of the alleged incident of the accused assaulting the victim
with an axe, which he was holding at the time of the incident.
Both the witnesses have identified the said axe at MO-1.
23. The evidence of PW-1 as victim and PW-2 as an
eye-witness has been further corroborated by the medical
evidence. The prosecution has examined PW-18 (CW-14)
Dr.Khaleed, the then-Chief Medical Officer of Holy Cross
Hospital, Kamagere. The said witness has stated that one
Dr.Pavan previously working in the said hospital has examined
the victim on 27.12.2013 who was brought to their hospital at
about 11.00 a.m. with an history of assault by a neighbour
boy. The necessary entries in MLC register also has been made
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to that effect. The injured had sustained contusion over right
side of the neck and deep multiple laceration wound over the
back of the neck. She had also sustained multiple abrasions.
The witness has stated that those injuries were grievous in
nature and were possible to be caused when assaulted with
the axe at MO-1. The witness has given clarification stating
that since cervical bone and veins were there in the neck region
and the lacerated wounds were deep, he has mentioned that
those injuries were grievous in nature. Stating that the wound
certificate has been issued from the records maintained by the
hospital, the witness has identified the said wound certificate
at Ex.P19.
Though in his cross-examination from the accused side,
he stated that he has not personally treated the injured but in
his evidence in examination-in-chief, he has stated that it was
Dr.Pavan who had treated the injured. However, due to his
non-availability, it is him who has given the evidence based on
the records maintained by the hospital.
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24. The prosecution also got examined one Smt.Blaise
said to be the Administrative Officer of Holy Cross Hospital at
Kamagere as PW-19. The said witness in his evidence has
stated that one Dr.Pavan was working in the hospital from
23.12.2013 to 29.12.2013. However, she does not know
where the said doctor is working now. As per the records
maintained by the hospital on 27.12.2013, the said Dr.Pavan
had examined the victim in the case and a mention to that
effect is there in the MLC register of the hospital. A police
intimation was also given in respect of the said medico-legal
case. Stating so, the witness produced a copy of the intimation
given to the police and got it marked as Ex.P20, an extract of
the MLC register was marked as Ex.P21 and his signatures in
those documents. She also stated that Ex.P19 was issued by
PW-18, Dr.Khaleed based upon the MLC register. She also
gave information that since the said Dr.Pavan was not
available in the hospital, it was Dr.Khaleed who issued Ex.P19.
The evidence of this witness was not cross-examined from the
accused side. As such, the evidence given by this witness has
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remained undenied and undisputed and establish that the
victim after the incident was taken first to Holy Cross Hospital
at Kamagere where treating it as a medico-legal case was
given first-aid treatment where the doctor has found out the
injuries as reflected in the wound certificate as at Ex.P19.
25. PW-11/CW-13/Dr.Samson, the Medical officer at
Janani Hospital, Kollegala in his evidence has stated that in the
afternoon of 27.12.2013, one Smt.Umera Bhanu, the mother
of the victim had brought PW-1, the victim with the history of
assault with an axe on the victim on that date at about 11.00
a.m. They came to know that the injured was first taken to
Holy Cross Hospital, Kamagere, from there, the patient was
referred to their hospital. The witness stated that he examined
the injured and noticed that she had sustained lacerated
wounds at four places on the back side of her neck. She had
also sustained one more lacerated wound on the chest portion.
The victim was admitted as an inpatient in their hospital on
27.12.2013 and was discharged on the next day afternoon. The
witness identified the wound certificate at Ex.P11 stating that
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it was issued by him and identified an extract of a case-sheet
and got it marked as Ex.P12. The witness has stated that
the said case-sheet pertains to the victim who was treated in
their hospital. He also stated that the blood group of the victim
was also tested in their hospital, in which regard, he has
issued a certificate as per Ex.P13. He further stated that if a
person is assaulted with MO-1, the injuries mentioned in
Ex.P11 are possible to be caused. If the assault is with force
by MO-1, the assaultee may also die. In his cross-examination
from the accused side, the witness gave more details about
the treatment given to the injured. Except eliciting further
details, nothing could be elicited by this witness in his cross-
examination to make his evidence in examination-in-chief a
doubtful one. As such, the evidence of PW-11 and PW-18
further corroborates the evidence of PW-1 and PW-2 that in
the assault committed by the accused upon the victim, she
sustained multiple injuries as shown in the wound certificate at
Ex.P19. Further, both PW-11 and PW-18 after seeing the axe
at MO-1 have stated that if a person is assaulted with the said
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weapon, the injuries found on the victim and mentioned in
Ex.P11 are possible to be caused. Therefore, the presence of
the injuries on the victim and the nexus between the weapon
and injury has been established from the evidence of these
two doctors.
26. The further corroboration placed by the
prosecution to prove its case that the accused has committed
the alleged act is the FSL report, which is at Ex.P7. Though
PW-15/CW-16/M.Shekharaju, the then-ASI of the complainant
police station has spoken about he receiving medical-legal
case from Holy Cross Hospital, Kamagere and recording the
statement of the victim at Janani Hospital, Kollegala and
registering a crime in their station in Crime No.180 of 2013
and thereafter, submitting an FIR as per Ex.P16 to the Court,
the next witness PW-17/ CW-22/ Basavaraju who
is the investigating officer in the case has stated about he
visiting the spot of the offence and drawing the panchanama
as per Ex.P5 and at that time, seizing an axe found fallen in
the spot, which is at MO-1 and collecting sample mud and
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blood-stained mud from the spot, which are identified as MO-6
and MO-7. He has also stated that he had requested the
doctor to examine the blood grouping of the victim (PW-1).
Accordingly, the blood grouping of the victim was done and it
was ascertained that it was B+ve blood. The very same witness
has also stated that during the investigation, he has also
seized the clothes worn by the victim at the time of the
incident under seizure mahazar, which was marked as Ex.P8.
He sent the seized articles including the axe and the clothes of
the victim to their examination to the Regional Forensic
Science Laboratory (for short, RFSL) at Mysuru and
subsequently has received a report from the said laboratory as
per Ex.P17.
27. PW-16/CW-15/Dr.Chaya Kumari, Scientific Officer,
RFSL at Mysuru has stated that her laboratory received the
articles sent by the investigating officer in this matter, which
was seven (7) in number and submitted them for their
chemical examination. After recording the finding of the
examination, she has prepared a report as per Ex.P17 and
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given it to the investigating officer. The witness has identified
the articles at MO-1 to MO-7 and the articles that were
received in her laboratory and examined by her. The said
report at Ex.P17, which has not been denied or disputed
specifically from the accused side shows that the articles that
were sent for the chemical analysis were MO-1 to MO-7.
Among those articles except in the sample mud mixed with
concrete pieces, all other articles were found stained, which
after examination revealed to be blood-stained and it was
human blood with 'B' group. As observed above, the blood
group testing of the victim, the report of which is at Ex.P13
also shows that it was of the group B+ve. Thus, the dress worn
by the victim at the time of the incident and also the axe said
to have been used by the accused in commission of the crime
were all found stained with the victim's blood. This further
corroborates the evidence of the victim, eye-witness as well as
the doctor about the incident and the weapon used. As such, it
has to be held that the prosecution has proved that it was the
accused and accused alone who inflicted injuries upon the
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victim by assaulting her on the date, time and place
mentioned above, with the axe at MO-1.
28. The next point that would be considered is, whether
the acts of the accused in assaulting PW-1 and inflicting four
injuries can be construed as an act of attempting to commit
murder of the victim?
29. The learned HCGP for the State and the learned
Amicus Curiae for the victim in their arguments vehemently
submitted that to attract Section 307 of IPC, it is not
necessary that the injured should have sustained grievous
injuries. The absence of the injuries also can attract Section
307 of IPC. Still in the instant case, the victim has sustained
four lacerated wounds on the vital parts of her body.
In Sadakat case (supra) relied upon by the learned
HCGP, the Hon'ble Apex Court was pleased to observe that use
of the deadly weapons and causing of the injury on the chest
and stomach, which are the vital parts of the body has shown
that the accused has committed an act of attempt to murder
attracting Section 307 of IPC.
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However, the said observation was made by their
Lordships considering the facts and circumstances of the case
before it and confining to the same.
30. In the case of Harjeet Singh (supra) relied upon
by the learned Amicus Curiae for the victim, the Hon'ble Apex
Court was pleased to hold that if the assailant acts with an
intention or knowledge that such action might cause death,
and hurt is caused, then the provisions of Section 307 Indian
Penal Code would be applicable. It was further observed that
there is no requirement for the injury to be on a "vital part" of
the body, merely causing 'hurt' is sufficient to attract Section
307 of Indian Penal Code.
31. In the case of S K Khaja (supra) which was also
relied upon by the learned Amicus Curiae for the victim, the
Hon'ble Apex Court was pleased to hold that merely because
the injuries sustained by the complainant were very simple in
nature, that would not absolve the accused from being
convicted for the offence under Section 307 of IPC. What is
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important is an intention coupled with the overt-act committed
by the accused.
32. A bare reading of Section 307 of IPC itself makes it
clear that to attract Section 307 IPC, it is not always necessary
that the assaulted or victim should sustain some injury. What
makes an act of the accused an attempt to murder is, his
intention or knowledge under the circumstance leading to an
act, which act, if results in causing the death, would be guilty
of murder. However, to assess the quantum of the sentence
for the brutal act of an attempt to murder, any hurt caused to
the victim would augment to enhance the quantum of the
sentence. Thus, the presence of the injuries upon the victim in
the act of attempt to murder would lead in pronouncing a
higher sentence in the case where the injuries are not
sustained by him. As such, presence or the nature of injury
cannot be the sole criteria to decide, whether the alleged act
attracts Section 307 of IPC.
33. In the instant case, no doubt, as analysed above,
the prosecution has established that the accused assaulted
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PW-1 and inflicted four injuries upon her. However, merely by
the presence of those four injuries, it cannot be deduced that
the accused attempted to cause the death of the victim in
order to call the acts of the accused as an attempt to kill the
victim. The other essential ingredient of Section 307 of IPC,
which is the knowledge and/or intention on the part of the
accused plays a vital role.
34. In the instant case, though the learned HCGP for
the State and the learned Amicus Curiae for the victim
vehemently contended that the prosecution has proved the
intention of the accused in alleged commission of crime,
however, the learned Amicus Curiae for the accused in his
arguments contended that except some allegations regarding
the motive, the prosecution has utterly failed to prove the
motive.
35. PW-1, the victim in her evidence has stated that
after she started loving the accused with same reciprocity, the
accused who was working under one Zameer Beig and Zameel
Beig (CW-7/PW-7 and CW-8/PW-8) asked the victim to pursue
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her parents to compromise the matter with Zameer Beig and
Zameel Beig. However, she was scared to request her parents
to compromise the matter. Then, the accused stated to her
that in case, if she does not pursue her parents to compromise
the matter, he would kill her and would not love her any
further and also would not marry her. However, she ignored
the same stating that the accused is merely uttering it without
an intention to do it. Thus, PW-1 attributes that her non-acting
as requested by the accused in the alleged matter of compromise
by her parents with one Zameer Beig and Zameel Beig has made
the accused to attempt to kill her by inflicting injuries upon her.
However, PW-1 could not give any details as to which particular
case the accused wanted her parents to compromise.
Similarly, PW-2, the mother of the victim also in her
evidence has stated that they had filed a case in Ramapura
Police Station against Zameer Beig, Zameel Beig, Thajmulla,
Noorjan and Mishrad Jan. The Court summons also had issued
to them in the matter. As such, on 26.12.2013, which
was previous date to the date of the incident, they had
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been to the Court at Kollegala. The witness has further stated
that as she came to know that the accused had telephoned
PW-1 and asked her (this witness) to compromise the matter
since PW-1 kept quiet without doing anything, the accused
once again telephoned her and threatened her that he would
kill her and also, he would not love her and would not marry
her. Inspite of the same, PW-1 just ignored it thinking that
the accused is stating so with no intention to do it. The said
motive attributed to the alleged offence by PW-2 in her
examination-in-chief has not been denied in her cross-
examination.
The evidence of PW-2 about she filing a case against
Zameer Beig and Zameel Beigand others, she attending to the
Court on 26.12.2013, the previous date of the incident in
question and also her evidence that the accused had
telephoned the victim asking her to get the matter
compromised by convincing her (PW-2) have all not been
denied in the cross-examination in any manner. As such, the
entire evidence of PW-2 attributing motive to the act of the
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accused in assaulting the victim with MO-1 has remained
undenied and undisputed.
36. PW-6, the father of the victim also in his evidence
reiterated the summary of what PW-2 (his wife) has stated
regarding the motive behind the commission of crime. This
witness also has stated that the accused had exerted pressure
upon his daughter (PW-1) to pursue her parents to compromise
in the said case filed against Zameer Beig and Zameel Beig. PW-
6 has stated that accused was friend of Zameer Beig and Zameel
Beig. Thus, PW-6 also attributed the motive behind the
commission of the crime stating that since PW-1 did not accede
to the request or demand of the accused and ensure the
compromise of the case instituted by her parents, he committed
the act of assaulting the victim with an axe. The said evidence of
PW-6 attributing motive to the act of the accused in commission
of the crime has not been denied in his cross-examination
from the accused side.
Thus, like the evidence of PW-2, even the
evidence of PW-3 also regarding the motive
in commission of the crime has remained undenied
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and undisputed from the accused side. This evidence of PW-1,
PW-2 and PW-6 makes it clear that the accused was interested
in making favour to one Zameer Beig and Zameel Beig and in
ensuring the compromise of the matter for them, which was
said to have been filed against them by the parents of the
victim. Though the said Zameer Beig @ Zameer and Zameel
Beig @ Zameel were examined as PW-8 and PW-9 by the
prosecution, however, both of them have turned hostile and
not supported the case of the prosecution but these two
witnesses not supporting the case of the prosecution is not un-
expected. It is for the reason that generally, a person against
whom a criminal case is said to have been filed would not be
supporting the case of that complainant in another case where
complainant or his family is interested.
Thus, irrespective of PW-8 and PW-9 not supporting the case
of the prosecution since the motive attributed by the material
prosecution witnesses, more importantly by PW-2 and PW-6, the
motive behind the commission of the crime that the accused
intended to ensure the compromise in the other criminal case
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instituted by the parents of PW-1 - the victim stands
established.
37. Even though the accused attempted to ensure the
compromise in a criminal case filed by the parents of the
victim is established, still, that itself may not be a foolproof
evidence to hold that he intended to kill PW-1. The said gap is
filled by the evidence of PW-1 and PW-2 who have specifically
and categorically stated that being not happy due to the
inaction on the part of PW-1, the victim in pursuing her parents
to compromise the matter, the accused threatened to kill PW-1
that he would not only stop loving her but also would proceed
to kill her. The said statements, said to have been made by
the accused to PW-1 has been re-iterated both by PW-1 and
other PWs. Further, as observed above, the alleged criminal
case filed by the parents of the victim was slated for hearing in
a Court at Kollegala on 26.12.2013, which was just the
previous day of the incident in question. As observed above,
the evidence of PW-2 given to that effect has not been denied
from the accused side. Therefore, it can be inferred that since
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on the previous day, the other criminal case where the
accused was interested in ensuring a clean chit either to his
employer or his friends, i.e., Zameer Beig and Zameel Beig
could not materialize, he has committed the act of assaulting
PW-1 on the very next day, i.e., on 27.12.2013. In addition to
the above, the parts of the organ to which the injury inflicted
by the accused upon PW-1 also plays an important role in
arriving at a conclusion whether the act of the accused results
in attracting Section 307 of IPC.
As observed above, the evidence of PW-18 coupled with
the wound certificate at Ex.P19 would show that PW-1, the
injured victim was found sustained with the contusion on the
right side of her neck and deep multiple laceration wound over
the back of the neck and multiple abrasions.
38. PW-18 has opined that all these injuries as grievous
by giving a reason that in the neck region, cervical bone and
the veins carrying the blood were also found and it is in that
place the injury has been inflicted. According to PW-1, the
victim and PW-2, the eye-witness, the accused was not
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satisfied with inflicting a single blow on PW-1 with MO-1/axe.
On the contrary, he inflicted three blows on her neck and one
blow on her chest. Had the accused not intended to take away
the life of the victim, he would not have inflicted multiple
blows, which in the instant case, are four blows on the victim.
The very act of the accused that he came to PW-1 duly armed
with a deadly weapon, i.e., axe with a handle and without
talking to her, lodging multiple blows upon her that too on the
vital organ, i.e., neck and chest would clearly go to show that
accused was not only known of the consequences of his act but
also had an intention to take away the life of PW-1, the victim.
However, the Special Court without analysing the evidence
placed before it in its proper perspective merely carried away
by the evidence of PW-11 that the injuries were simple in
nature and in its single sentence reasoning observed that since
the injuries found on PW-1 were simple in nature, the
prosecution has failed to prove the offence punishable under
Section 307 of IPC. With the said observation holding that the
prosecution could able to prove that the accused has assaulted
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PW-1 and inflicted injuries upon her with the axe at MO-1
identified the said act of the accused as an offence punishable
under Section 324 of IPC. Since the said reasoning given by
the Special Court in the impugned judgment appears to be
erroneous, in the light of the analysis made above, the
impugned judgment warrants interference at the hands of this
Court.
39. The accused has also been charged with the offence
punishable under Section 326 of the IPC. In the light of the
analysis made above, and more particularly, the evidence of
PW-18, the doctor that the injuries found on the victim was
grievous in nature and the evidence has further proved that it
was the accused who inflicted those injuries with the axe at
MO-1 though Section 326 of IPC can also be pressed into
service, since in the light of the observation that the
prosecution could able to prove beyond doubt that the accused
has committed an offence punishable under Section 307 of
IPC, no separate observation in respect to Section 326 of IPC
needs to be made.
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40. The prosecution has also alleged that in the course
of his act towards the victim on the date of the incident, the
accused has also exerted criminal force against her and
outraged the modesty of the victim. The learned HCGP for the
State in her arguments vehemently submitted that outraging
the modesty also includes hurting the feeling of the victim. In
the instant case, since the accused has assaulted the victim in
front of the lavatory of her house which was hardly ten (10)
feet away from the main door, which was a public place, the
prosecution has to be taken as proved the offence against the
accused punishable under Section 354 of IPC.
41. We are not satisfied with the said interpretation of
Section 354 of IPC as depicted by the learned HCGP.
Section 354 of IPC clearly mentions that there must be
an assault or use of criminal force on any woman by the
accused with an intention to outrage or knowing it to be likely
that he will thereby outrage the modesty of the said woman.
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42. In the instant case, evidence of none of the
witnesses much less PW-1, PW-2 and PW-6 have anywhere
whispered that the accused had any knowledge or intention to
outrage the modesty of PW-1, the victim. No doubt, it is
established that the accused has assaulted PW-1 with a
weapon, i.e., the axe at MO-1 and had used criminal force.
However, the said use of criminal force or assault, no doubt
has proved to be with an intention to take away her life and
knowledge about the consequences of his act but the same
would not be taken as an intention to outrage her modesty by
the accused. Moreover, nothing has come in the evidence of
PW-1 about her feeling at the act of the accused. If at all, PW-
1 has felt that her modesty was outraged by the accused,
then, it was expected of her to speak about the same in her
evidence. But nowhere she has whispered. Neither the
prosecution nor the Court in the absence of any evidence
either direct or indirect, cannot peep into the mind of the
victim and try to find out what her feeling was at the time of the
incident. Therefore, the argument of the learned HCGP on the
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said point is not acceptable. Consequently, though the accused
was charged for the offence punishable under Section 354 of
IPC, we find no evidence placed by the prosecution to prove
the said alleged guilt against the accused.
43. The accused has also been charged with the offence
under Section 11(iv) read with Section 12 of the POCSO Act.
Section 11 defines sexual harassment.
Section 11 (iv) reads as below:
"(iv) repeatedly or constantly follows or
watches or contacts a child either directly or
through electronic, digital or any other means"
As per the above, the act of the sexual intent should
have been repeated or consistent act of following the victim or
watching her or contacting her either directly or through
electronic digital or any other means. The learned HCGP for
the State and the learned Amicus Curiae for the victim in their
arguments vehemently submitted that the victim/PW-1 in her
evidence has clearly stated that while she was at Bengaluru,
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the accused was repeatedly telephoning her and stating that he
was loving her and also teasing her and troubling her. The said
statement of the victim has been denied in her cross-
examination. Even if the said statement is read and taken on its
face value, still the same is not without any serious doubts. The
first and foremost doubt that crux in believing the said statement
is that though the witness has stated that the accused was
calling her over the phone repeatedly teasing her and troubling
her, however, the witness has not even narrated the details of
any one of such incidents. Had such an act of the accused was
repetitive, definitely, the victim was expected to revealed details
atleast about some of them with respect to the date, time, place
and manner, mode, etc., As such, her statement is very bald and
vague in alleging that the accused was teasing her and
repeatedly telephoning her and also disturbing her.
Secondly, in the first part of her examination-in-chief, the
witness has stated that while she was at Bengaluru, she
received a message to her cell phone as 'I love you'.
However, she could not know who the sender was, as such,
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she ignored that. The very same witness in the latter part of
her evidence has stated that while she was at Bengaluru,
the accused was repeatedly telephoning her and was telling
that he was loving her and also teasing her. If her second
statement that the accused was regularly calling her over
the phone and telling her that he was loving her and also
teasing her is taken as true, then, it also has to be
necessarily taken that PW-1, the victim was aware of the
telephone number of the accused and aware as to who the
caller was. As such, when she is said to have received a
message to her cell phone as 'I love you', she cannot say
that she was not aware who the sender of the message was.
Thus, the very same statement of the complainant/victim
made at two different places, does not go together and each
creates a doubt in believing the other statement. As such,
in the absence of any detail as to when and in what manner,
the accused has contacted her either directly or through
electronic or digital media including over the phone, it
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cannot be taken as established that the accused was sexually
harassing her in a manner as alleged by PW-1.
44. The evidence of PW-2 regarding the alleged sexual
harassment by the accused is admittedly an hear-say based
upon the alleged information said to have been given to her by
none else than her daughter, i.e., PW-1. When the very
evidence of PW-1 regarding the alleged sexual harassment is
not believable, the information collected by PW-2 from PW-1
as an hear-say also cannot be taken as believable.
Lastly and finally, it also cannot be ignored of the fact that
the charge alleged against the accused for the offence punishable
under Section 11(iv) read with Section 11 of the POCSO Act is,
that the sexual harassment was committed on 27.12.2013 at
about 10.30 a.m. The charge does not say that the alleged act of
sexual harassment was committed at a different place, i.e., at
Bengaluru and on the previous date, which is prior to the date,
27.12.2013. Thus, the very charge for the offence punishable
under Section 11(iv) read with Section 12 of the POCSO Act since is
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confined to a particular date i.e., 27.12.2013 and admittedly,
the prosecution has not considered the same and lead any
evidence on the point of alleged sexual harassment on the
date, 27.12.2013, on the said technical ground also, it has to
be held that the prosecution has utterly failed to prove the
guilt against the accused under Section 11(iv) read with
Section 12 of the POCSO Act.
Thus, even though the appellants in both the appeals
were able to prove the guilt against the accused committed
under Section 307 of IPC, however, they have failed to prove
the alleged guilt against the accused for the offence punishable
under Section 354 of IPC and under Section 11(iv) read with
Section 12 of the POCSO Act. Since the Special Court, as
observed above, did not analyse the evidence placed before it
in its proper perspective, on the contrary, though it held the
accused guilty of the offence punishable under Section 324 of
IPC, but failed to notice that the evidence placed by the
prosecution was sufficient to attract Section 307 of IPC, the
said impugned judgment warrants interference at the
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hands of this Court in the form of modification. Accordingly,
we proceed to pass the following:
ORDER
(i) Crl.A.No.1786 of 2017 is allowed;
Crl.A.No.491 of 2017 is partly allowed;
(ii) The impugned judgment of conviction and order of sentence dated 18.11.2016 passed by the learned Principal District and Sessions Judge, Chamarajanagar in Special Case No.12 of 2015 stands modified to the extent that the order of acquittal of the accused for the offence punishable under Section 307 of IPC stands set aside.
(iii) The judgment of conviction holding the accused guilty for the offence punishable under Section 324 of IPC stands modified to the extent that the accused, namely, Azgar, Son of Akbar, Resident of Basappanadoddi Village, Kollegal Taluk is found guilty
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(iv) The rest of the finding of the Trial Court in acquitting the accused for the offence punishable under Section 354 of IPC and under Section 11(iv) read with Section 12 of the POCSO Act stands confirmed.
(v) Since Section 326 of IPC, in the circumstance of the case stands merged into Section 307 IPC, no finding on the said offence is explicitly given.
Sd/-
JUDGE Sd/-
JUDGE BVK,DH List No.: 1 Sl No.: 3
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22.11.2023 Hearing on Sentence
45. Heard both sides in both the appeals regarding the sentence.
46. The learned Amicus Curiae for the accused in his submissions, submitted that, from the records, it appears that the accused is a first time offender and that there are no criminal antecedents to him. As on the date of the alleged offence, the accused was appearing to be 24 years. As such, he is now aged about 34 years of age, having his own family and dependants. Under the said circumstance, considering his age and the number of years that has lapsed after the alleged incident, a lenient view to be taken.
The learned Amicus Curiae for the victim in her statement submitted that the victim was a minor in her age as on the date of the incident. Due to the incident, she has suffered a great shock and she has lost
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47. The learned HCGP in her submission, submitted that the proved offence is a heinous offence that too against a minor girl. Under the said circumstance, the maximum punishment be ordered.
48. It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt. It shall be neither exorbitant nor for the name-sake.
49. In the instant case, though there are no materials showing any criminal antecedents against the accused but the proven guilt has been committed against a minor girl. Though from the date of the offence, nearly ten (10) years has elapsed but the contribution of the accused in the delayed disposal of the matter also cannot be ignored. As such, mere considering the time taken in disposing of the matter either through Court of first instance or in the appeal, as a general practice, the accused cannot seek the Court to be
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ORDER ON SENTENCE
1. The accused, namely, Azgar, son of Akbar, resident of Basappanadoddi Village, Kollegal Taluk is sentenced to undergo simple imprisonment for a period of ten (10) years and to pay a fine of `20,000/-
(Rupees Twenty Thousand only) and in default of payment of fine, to undergo an additional imprisonment for six (6) months for the offence punishable under Section 307 of IPC. Out of the fine amount paid by the accused, if any, a sum of `18,000/- (Rupees Eighteen Thousand only) be paid to PW-1, the victim as
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2. The order on sentence passed by the Special Court stands modified on the lines mentioned above.
3. The rest of the observation of the Special Court in the impugned judgment regarding disposal of the property at MO-1 to MO-7 remains unaltered.
4. The accused Nos.1 is entitled for the benefit of set-off under Section 428 of the Code of Criminal Procedure, 1973.
5. The accused (Azgar) herein shall surrender before the Special Court within forty five (45) days from today and serve the sentence as ordered above by this Court.
6. The accused (Azgar) is entitled for a free copy of this judgment.
The Court, while acknowledging the services rendered by the learned Amicus Curiae for the victim, Smt.Archana.K.M., and the learned Amicus Curiae Sri.V.S.Vinayaka for the
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Registry to transmit a copy of this judgment along with Special Courts records to the concerned Court immediately, for doing needful in the matter.
Sd/-
JUDGE Sd/-
JUDGE BVK, DH List No.: 1 Sl No.: 3